Vankirk v. Patterson , 201 Pa. 90 ( 1902 )

Opinion by

Mb. Justice Potteb,

This is an appeal from a decree dismissing a bill in equity, filed to cancel a recorded option for the sale of a tract of coal land; the recording of the option being a cloud on plaintiffs’ title.

The lack of an orderly statement of the findings of fact, by the court below, has rendered it difficult to ascertain clearly, what the force and effect of the findings were. We are satisfied, however, that the first assignment of error presents substantially the entire ground of controversy between the parties. It alleges that the court erred in its answer to the plaintiffs’ fourth request for a finding of fact, which request and answer is as follows:

“4. That this clause or covenant in the agreement of option, that the same should be null and void unless one third of the purchase money was paid at the end of six months, was inserted at the time and before the signing thereof, at the instance and request of the plaintiffs, and upon the express consent and agreement of the defendant in parol, that it was to be a condition precedent to the sale of said coal lands and their mining rights, that one third of the purchase money should be paid to the plaintiffs by the said defendant on or before February 1, 1900. Answer: Found as a fact, and further that the plaintiffs on their part were to make deeds free of lien and incumbrances.”

Whether time was of the essence of the contract or not, the covenants of the vendor and vendee, were mutual. The defendant was bound to pay one third of the purchase money, and the plaintiffs were bound to present a deed and show a clear title.

The court found as facts, that there was a break in the chain of title, caused by an unrecorded deed, of which plaintiffs had notice. That no deed was presented by the plaintiffs, either upon the date stipulated or at any other time. And further that the examination of the title by defendants, disclosed the existence of liens of record against the property in excess of the payment to be made on account of the purchase money. Clearly these were all matters in which plaintiffs were in default. Until remedied defendant could not be called upon to make payment, or to proceed in the performance of his covenants. The authorities are uniformly to the effect, that where performance is prevented by either party no advantage can be taken by the party causing the failure.

The law on the subject is thus stated in Waterman on Specific Performance, sec. 486: “ When parties have deliberately by their agreements or covenants fixed a time for the performance of an act, a court of equity, will be very cautious how it interferes in disregard of it, and thus in effect change the contract which the parties have made. It will not do this, unless by reason of mistake or .some other cause falling within the legitimate powers of a court of equity, it shall see that justice demands the exercise of its jurisdiction irrespective of the lapse of such time. But if a party who insists upon exact time, has himself been the cause of delay, a court of equity will notwithstanding, decree specific performance. The vendor is not entitled to forfeit the contract as against the vendee, when he is himself in no condition to perform, even though, by the terms of the contract, he has the right to declare it forfeited and to retain what has already been paid, if the vendee makes default. But the party seeking relief from a forfeiture must show that circumstances which exclude the idea of wilful neglect or gross carelessness have prevented a strict compliance, or that it has been occasioned by the fault of the other party, or that a strict compliance has been waived.”

In Pomeroy on Contracts, sec. 894, it is said: “ Wherever time is made essential, either by the nature of the subject-matter and object of the agreement, or by express stipulation, or by a subsequent notice given by one of the parties to the other, the party in whose favor this quality exists—that is, the one who is entitled to insist upon a punctual performance by the other, or else that the agreement be ended—may waive his right and the benefit of any objection which he might raise to a performance after the prescribed time, either expressly or by his conduct ; and his conduct will operate as a waiver when it is consistent only with a purpose on his part to regard the contract as still subsisting and not ended by the other party’s default.”

In support of the text, a line of English and American cases are cited, which fully sustain this principle.

Our Pennsylvania cases of Remington v. Irwin, 14 Pa. 148, Tiernan v. Roland, 15 Pa. 429, Irvin v. Bleakley, 67 Pa. 24, and Hatton v. Johnson, 83 Pa. 219, are all to the effect that a party in default has no right to insist upon a rescission.

No case has been cited by counsel, or revealed by diligent search in which a party in default has been allowed to declare a forfeiture. Benedict v. Lynch, 1 Johnson’s Ch. 370, cited by appellant, makes an exception broad enough to sustain this statement. We agree with the conclusion of the court below as set forth in the affirmance of defendant’s third request-¿or findings of law. “ That as plaintiffs never performed or offered to perform their part of said agreement, and never tendered a deed ‘clear of all encumbrances whatsoever,’ no default can be imputed to the defendant and the agreement cannot be can-celled.” Since the argument of this case, our attention has been called to the Act of June 10, 1893, P, L. 415, entitled, “An act to provide for the quieting of titles to land,” and the suggestion has been made that this act provided a complete statutory remedy for the plaintiffs. Whether it does or not, we do not here decide, as the question was not argued, nor was it considered by the court below. The bill was properly dismissed upon the merits.

The assignments of error are all overruled and the decree is affirmed.